Bushell v R

1. [1]

   DAVIES J: Daniel Bushell, the applicant, and John Tozer were charged that in February 2017 at Oberon in the State of New South Wales they murdered Ricky Ciano. They were tried jointly in the Supreme Court before Rothman J and a jury.

2. [2]

   On 23 August 2023, the 19th day of the trial, the jury was discharged in the case of Mr Tozer only due to late disclosure of evidence by the police. The applicant’s trial continued before the same jury.

3. [3]

   On 5 September 2023 the jury returned a verdict of not guilty to murder but guilty to manslaughter. Manslaughter was left to the jury on the basis of unlawful and dangerous act in circumstances which will be discussed presently.

4. [4]

   On 17 November 2023 Rothman J sentenced the applicant for the manslaughter of Mr Ciano as well as for three drug offences to which the applicant had pleaded guilty as follows:

5. [5]

   In relation to count 2 an offence of possessing a precursor intended to use in manufacture (1.004 kilograms of ephedrine) was taken into account on a Form 1.

6. [6]

   His Honour imposed an aggregate sentence of 18 years’ imprisonment commencing on 28 April 2017 and expiring on 27 April 2035 with a non-parole period of 12 years expiring on 27 April 2029. The indicative sentence for manslaughter was imprisonment for 9 years.

7. [7]

   The applicant now seeks leave to appeal against his conviction for manslaughter on the four grounds as follows:

8. [8]

   Ground 4 was added with leave at the hearing of the appeal.

9. [9]

   At the conclusion of the hearing of the appeal on 26 February 2025 the Court made the following orders:

10. [10]

    The following are my reasons for joining in those orders.

The offending

1. [11]

   The applicant and Mr Tozer are half-brothers. The deceased was a former member of the Rebels Motorcycle Club and knew Mr Tozer through that Club. On Saturday, 11 February 2017 the applicant and Mr Tozer met with the deceased for the purpose of manufacturing drugs together at premises in Harris Street, Oberon. While they were present at those premises the deceased was injected with a fatal dose of heroin and cocaine mixed in one syringe. It was the Crown case that either the applicant or Mr Tozer injected the deceased whereas it was the defence case that the deceased had injected himself with the drugs.

2. [12]

   The forensic pathologist, Dr Brian Beer, conducted the autopsy on the deceased. He said the cause of death was a mixed drug overdose, and that the toxicology report showed heroin use, cocaine use and a background of Alprazolam and Oxycodone, with Naloxone and Ibuprofen also present. He said the main drugs causing death were heroin and cocaine. He identified a single injection site in the arm and he considered that death occurred very quickly after the drugs were injected.

3. [13]

   Following the deceased’s death, the applicant and Mr Tozer drove from Oberon to Mr Tozer’s home in Ropes Crossing. On the following day, 12 February 2017, Mr Tozer contacted Witness A who attended at Mr Tozer’s home. Mr Tozer, the applicant and Witness A then walked to a nearby park and, according to Witness A, Mr Tozer said that what had happened was that the three of them were drinking alcohol and were celebrating the fact that the deceased was due to have a son. The deceased had taken some “Oxies” which didn’t seem to be working. The applicant had a shot of what Witness A understood to be heroin. The deceased, having seen the effect of that shot on the applicant, indicated he wanted to do the same. The deceased then had a shot which led to the overdose. Mr Tozer attempted without success to revive the deceased by pushing on his chest. When that did not work, they shut down the drug manufacturing operation and left the property.

4. [14]

   Mr Tozer told Witness A and the applicant to go to Oberon and move the deceased’s body. Witness A and the applicant then drove the applicant’s car and another vehicle to Oberon. After arriving in Oberon they put the deceased’s body into his own car. They then left the car with the deceased’s body in the back seat some 15km east of Oberon. A syringe and a container containing some tablets were located in the rear footwell near the body. It was part of the Crown case that the applicant and Witness A had positioned the body and the items in such a way as to make the death look like a suicide.

5. [15]

   The applicant’s fingerprints were located on the exterior of the front passenger side door window of the car. The deceased’s DNA was recovered from the needle of the syringe and the applicant’s DNA could not be excluded as a minor contributor to DNA found on the interior surface of the plunger and barrel of the syringe. The applicant’s DNA was located on stains on a mattress in the Oberon premises, as well as the deceased’s DNA.

6. [16]

   A member of the public discovered the deceased’s body and the car some two days later and informed the police.

Admissions

1. [17]

   On 26 July 2018 the applicant and Mr Tozer were arrested.

2. [18]

   The Crown relied upon admissions made by the applicant from three broad sources. First, there were audio recorded conversations that the applicant had in gaol with several people including Peter “Chop” Schaeffer, Mr Tozer and others. The Crown also relied on unrecorded conversations with two prisoners known as Witnesses B and C.

3. [19]

   Witness B was born in Iran and moved to Australia at the age of 24. At the time of the trial he was 36. He had been sentenced for supplying prohibited drugs and in January 2020 he began sharing a cell with the applicant at the Metropolitan Remand and Reception Centre (“MRRC”). He had a conversation with the applicant on the first or second day that they began sharing a cell.

4. [20]

   Witness B alleged that the applicant said the following:

5. [21]

   Witness B made written notes in Farsi about his conversation with the applicant because he intended to tell the police. Those notes were translated into English and became an exhibit in the proceedings.

6. [22]

   Witness C was a prisoner who had known the applicant since 2016. Around 20 December 2019 he was moved to the same pod as the applicant at the MRRC. In the month that followed, Witness C said that he had had about four conversations with the applicant about his murder charge. Witness C alleged that the applicant said the following:

The impugned directions

1. [23]

   The applicant does not complain of the directions given by the trial judge before the jury was sent out to consider its verdict. The complaint relates to directions given following receipt of two jury notes. The substance of the complaint identified in the first three grounds of appeal is that the Crown effectively broadened the case that it had identified and run from the outset of the trial up to and including the trial judge’s summing up to the jury. The applicant submitted that the Crown case had always been that the deceased died because one or other or both of the applicant and Mr Tozer had injected the deceased with the drugs. The applicant submitted that as a result of the two jury notes the Crown broadened its case to allege that the applicant could be found guilty even if it was the case that the deceased had injected himself with the drugs if the applicant had aided and abetted that self-injection.

2. [24]

   In her opening address the Crown said this:

3. [25]

   Senior counsel for the applicant said in his opening address:

4. [26]

   In her closing address, the Crown prosecutor said this:

5. [27]

   In his summing-up, the trial judge said this:

6. [28]

   In discussing the elements of murder, his Honour said this:

7. [29]

   Thereafter, his Honour dealt with manslaughter and said:

The jury questions

1. [30]

   The jury retired at 11:15am on Thursday 31 August 2023 to consider its verdict. Having deliberated for half a day on Friday, 1 September 2023 and the morning of Monday, 4 September 2023, the jury sent a note with five questions as follows:

2. [31]

   Debate ensued between the trial judge and counsel in relation to those questions. Amongst other things, the Crown said that she had some difficulty with the words “without that person’s consent” in the written directions (Q 1), and the proposition that the deceased could consent to an unlawful and dangerous act and the broader proposition whether someone could consent to an assault.

3. [32]

   His Honour gave the parties until the following morning to consider what answers should be given to the questions. Each counsel provided brief written submissions to the trial judge the following morning. In the written submissions of the Crown, there was raised for the first time what was said to be another type of unlawful act relevant to the case apart from “an act is unlawful if it involves a deliberate application of force to another person without that person’s consent”. The Crown submitted that it was also unlawful for a person to administer a prohibited drug to another person under s 13 of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). Further, under s 19 it was unlawful for a person to aid and abet another person to administer a prohibited drug to himself or to another person. The Crown submitted that it was a criminal offence even if the person who was injected consented to that act. In that way consent by the deceased was irrelevant.

4. [33]

   Senior counsel for the applicant submitted that the Crown ought not to be permitted to rely upon a different type of unlawfulness at such a late stage in the proceedings where the Crown had accepted, at least inferentially, that the type of unlawfulness upon which it was relying was the application of force without a person’s consent. In answer to a question from the trial judge, senior counsel for the applicant said that if the Crown had relied upon an unlawful act by reason of the provisions of the DMTA it would not have changed the defence case or the way he presented the defence case, but he submitted that the Crown should be held to the way it had run its case.

5. [34]

   The trial judge then delivered a brief extempore judgment (R v Bushell (No 18) [2023] NSWSC 1454) which concluded in this way:

6. [35]

   At the conclusion of the judgment the trial judge asked counsel if anyone wished to add anything to what he said, and both counsel said that they did not.

7. [36]

   Shortly thereafter, a second note from the jury was received asking these questions:

8. [37]

   After a brief discussion between the trial judge and counsel, the jury returned to Court and his Honour first gave directions in relation to the first of the jury notes in relation to the issue of consent, his Honour said:

9. [38]

   In relation to the second jury note his Honour said:

10. [39]

    At the conclusion of those further directions, the trial judge first asked senior counsel for the applicant if there was anything his Honour needed to correct or add to the directions, and senior counsel said that there was not. The Crown sought a clarification of the issue of assisting by a person who was not doing the injecting. The jury returned to Court, and his Honour said this:

Grounds of appeal

1. [40]

   The applicant submitted that the effect of the trial judge’s redirections was relevant to grounds 1 to 3.

2. [41]

   The applicant submitted that only one act, being the injection of drugs, was identified as the act causing death. The evidence at trial contemplated three hypotheses, that the act causing death was committed by the applicant, Mr Tozer, or the deceased. The applicant submitted that when the jury first retired to consider its verdicts, it was clear that only the first two hypotheses could result in a guilty verdict for manslaughter and the third hypothesis could not result in a guilty verdict for manslaughter.

3. [42]

   The applicant submitted that the redirections gave rise to a new pathway to guilt founded on the deceased's self-injection of drugs. The applicant submitted that the jury would have understood that it could convict the applicant of manslaughter if it found beyond reasonable doubt:

4. [43]

   The applicant submitted that those four elements which suggested a pathway to guilt for manslaughter via accessorial liability, were problematic because:

5. [44]

   The applicant submitted that even if his liability via this pathway were to be characterised as primary rather than derivative because it was thought that he was acting in concert with the deceased as part of a joint criminal enterprise to inject drugs, the result would not change because the majority holding in IL would still preclude a conviction for manslaughter.

6. [45]

   Where satisfaction of the purported elements of manslaughter did not actually amount to the crime of manslaughter, the judge’s redirection was a misdirection that amounts to an error of law. Accordingly, the conviction should be quashed and a new trial should be ordered.

7. [46]

   The Crown acknowledged that the Court may consider that ground 1 has been made out in the particular circumstances of the present case, and grant a retrial on the basis that the ultimate effect of what was left to the jury may be characterised as a pathway of derivative liability for the deceased's own act which led to his death, contrary to IL v The Queen at [25]. The Crown said that the concession was made in circumstances where it accepts that the directions were ambiguous in some respect, particularly with respect to whose "act" constituted the unlawful and dangerous act if the deceased had injected himself with drugs, what the nature of the "assistance" might be and whether it would be sufficient for the applicant to aid and abet an act of assistance by Mr Tozer rather than directly assisting himself.

8. [47]

   The Crown, nevertheless, properly put forward potential counter arguments to that outcome for the appeal, for the consideration by the Court. Those arguments were as follows.

9. [48]

   First, on one view of the directions, the trial judge did not leave any scenario that could be characterised as a "self-killing" to the jury. There was no dispute in the trial that if the deceased had administered the drugs to himself (and overdosed) without any assistance from or involvement of the applicant or Mr Tozer, the applicant could not be convicted, and the jury were directed in those terms. Similarly, there was no dispute that if either the applicant or Mr Tozer injected the deceased without his involvement, agreement or consent, that would be an unlawful and dangerous act and the applicant could be convicted of manslaughter.

10. [49]

    The Crown submitted that while the trial judge's responses to the jury notes did not detract from those propositions, the effect of the impugned directions was to leave to the jury a scenario which lay somewhere between those two extremes. That scenario was one of assisted administration as distinct from wholly self-administration.

11. [50]

    The Crown submitted, secondly, that the decision of the High Court in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 (which pre-dated IL but which is not referred to in IL) left open the question, as a matter of law, of whether a person who assists a person to administer prohibited drugs can be liable for involuntary manslaughter. A person is liable for involuntary manslaughter on the basis of an unlawful and dangerous act where they have engaged in an unlawful act causing death which is objectively dangerous, in the sense that a reasonable person would realise that the act exposes another to an appreciable risk of serious injury.

12. [51]

    The Crown submitted that the High Court in Burns left open the possibility that a person “assisting” someone to inject a drug may be engaging in an unlawful and dangerous act. The facts of that case, which involved the supply of methadone to a person who later ingested it and died, was not the occasion for resolution of the issue of the responsibility for manslaughter by assisting with the administration of a prohibited drug because the unlawful and dangerous act left to the jury was ultimately not the act of assisting a person with injecting drugs.

13. [52]

    The Crown submitted that, arguably, assisting another person to ingest a lethal dose of prohibited drugs is capable of amounting to an unlawful and dangerous act regardless of whether the person consents to the act or not. If that is right, the Crown submitted, the trial judge was correct to direct the jury that administering drugs to another person is an unlawful act, as is the act of assisting a person to administer unlawful drugs to themselves. So much is clear from ss 12-14 and 19 of the DMTA.

14. [53]

    Whether or not the act of assistance is a dangerous one and a substantial cause of death will depend on the particular facts. In the present case a conclusion that the act of assistance was dangerous was available having regard to the nature, combination and quantity of substances involved. There was no dispute as to the causal link between the act of injecting the drugs and the deceased’s death. If the act of the applicant was assisting with that injection, it was open to the jury to conclude that this was a substantial cause of death, regardless of whether the deceased's own actions were also contributory.

15. [54]

    Finally, the Crown submitted that the facts of IL were quite different from the present case, and on one view the reasoning in IL was confined to a case where a person is alleged to be liable for another person's death based solely on participation in a joint criminal enterprise rather than where, as here, there was an identifiable unlawful act on the part of one of the co-accused. In IL, there was no evidence that the applicant played any role in the act that resulted in the deceased's death. By comparison, the scenario left to the jury in response to the first jury note was one in which the applicant assisted with an injection, that is, it did not involve a misadventure by the deceased solely at his own hands.

16. [55]

    The Crown submitted that on one view, the unlawful act for the purposes of the alternative charge of manslaughter may not be characterised as the deceased's own act, but was the unlawful act of either the applicant or Mr Tozer assisting a person to administer prohibited drugs. If that is how his Honour's directions are construed, and this Court considers the circumstances of this case distinguishable from IL on that basis or because the Crown case was not left on the basis of a joint criminal enterprise, the Crown submitted that the pathway to liability was available as a matter of law.

17. [56]

    In Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35, Natalie Burns was convicted of the manslaughter of David Hay contrary to s 18 of the Crimes Act 1900 (NSW). Ms Burns and her husband were registered participants in a methadone program. She sold some of her own methadone to Mr Hay which he ingested. The evidence did not establish whether he injected himself or was assisted by Ms Burns, her husband or another visitor.

18. [57]

    The trial judge directed the jury that if Ms Burns supplied methadone to the deceased and if that supply was dangerous and if it caused the death of the deceased she could be convicted of manslaughter. That direction was held to be in error. While it was not in dispute that the supply of methadone to the deceased was unlawful the Crown case did not involve a contention that the supply of the methadone was a dangerous act in the sense necessary to support a conviction for manslaughter. The Crown’s case was that Ms Burns and her husband had injected the deceased with methadone and, in the alternative, that they had assisted the deceased to inject himself with the drug. The Crown alleged that their conduct in doing either of those things was an unlawful and dangerous act which caused the death of the deceased and support a verdict of guilty of manslaughter.

19. [58]

    The Crown accepted on a hearing of the appeal to the High Court that the supply of methadone alone could not substantiate the commission of an unlawful and dangerous act.

20. [59]

    The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [89]:

21. [60]

    In IL v The Queen the deceased was severely injured by a fire that broke out in residential premises owned by IL. She died ten days later. IL had been using the premises for the purpose of refining raw methylamphetamine. The deceased’s death was caused by the lighting of a gas ring burner in an inadequately ventilated bathroom. The Crown relied on felony-murder because the act was done during the commission of an offence punishable by imprisonment for life, namely, the manufacture of a large commercial quantity of a prohibited drug, with which IL was also charged. However, the Crown was unable to prove at trial whether IL or the deceased ignited the gas ring burner that caused the fire. Due to its inability to prove that IL physically did the act causing the death, the Crown argued that IL was nonetheless criminally liable for the act causing death as a participant in a joint criminal enterprise.

22. [61]

    At trial, Hamill J directed the jury to return verdicts of not guilty on the charges of murder and manslaughter: R v IL (No 2) [2014] NSWSC 1710.

23. [62]

    The Crown appealed pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against the directed verdict of acquittal. This Court quashed the verdict of acquittal and ordered that there be a new trial on the charges of murder and manslaughter: R v IL [2016] NSWCCA 51. The High Court granted special leave to appeal against the quashing of the verdict of acquittal.

24. [63]

    In upholding the appeal, the joint judgment of Kiefel CJ, Keane and Edelman JJ said:

25. [64]

    As noted earlier, no reference was made in the judgments of the High Court in IL to the passing remarks in Burns at [89]. That is not surprising since the facts in IL did not concern a person who assisted an adult at their request with the administration of a prohibited drug. Nevertheless, the omission highlights the rather different factual and legal situation in IL from death by drug ingestion where the accused is involved.

26. [65]

    IL was considered by this Court in Moussa v R [2017] NSWCCA 237. That case also involved a joint criminal enterprise, where it was intended to burn down a house, and where the deceased who actually set fire to the house was accidentally killed in the process.

27. [66]

    In his judgment Fagan J usefully analysed the differences between the two joint judgments and the two separate, individual judgments in IL. His Honour said at [63]:

28. [67]

    His Honour then noted that Bell and Nettle JJ expressed a minority view on the subject of attribution of acts between participants in a joint criminal enterprise where their Honours said at [82]:

29. [68]

    Justice Fagan then said:

30. [69]

    In her judgment, N Adams J said at [69]:

31. [70]

    In the present case, the liability of the applicant was not said to derive as a result of a joint criminal enterprise but only, on the case put forward up to the time the jury was first sent out to consider its verdict, on the basis that either the applicant or Mr Tozer had injected the deceased with the drugs, or on the redirections after receipt of the jury notes, on the basis that the applicant had assisted the deceased, or possibly Mr Tozer who was assisting the deceased, to inject the drugs.

32. [71]

    If the liability was based on aiding and abetting, the applicant could only be a principal in the second degree, and his liability would be derivative and not primary. In Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 McHugh J said at [71]:

33. [72]

    In such circumstances, there can be no liability in the applicant for manslaughter in accordance with what was said by Kiefel CJ, Keane and Edelman JJ in IL at [25]. Any act of aiding and abetting may only constitute an offence under s 19 of the DMTA.

34. [73]

    The trial judge in the present case was not directed to what was said in IL and was not provided with the assistance by what was said in that case. The further basis put to the jury after receipt of the jury notes was a fundamental change in the way the case had been run. Both the Crown and the trial judge had made clear that there were, in substance, only two possibilities. If either or both or the applicant and Mr Tozer administered the injection the applicant was guilty of either murder or manslaughter. If the deceased self-injected the applicant must be found not guilty. The trial judge said to the jury at [235] of his summing-up:

35. [74]

    The redirection permitted the jury to find the applicant guilty even if the deceased self-injected if the applicant aided and abetted because, by that stage, the Crown was relying on the provisions of the DMTA as constituting an unlawful act. Senior counsel for the applicant argued strongly against that widening of the case but his Honour ruled in the judgment referred to at [34] above that the case could be put that way.

36. [75]

    Whether consent of the deceased was relevant if there was not self-injection was left in a somewhat confusing state, as the italicised passages at [37] and [39] above make clear in the redirections.

37. [76]

    The Crown’s concession with regard to this ground was properly made, especially where the trial judge was not assisted by a reference to IL. In those circumstances it was necessary to make the orders quashing the conviction and ordering a retrial. It is not, therefore, necessary to consider the remaining grounds. I note, however, that the Crown conceded that ground 4 was also made out. Upholding that ground also required the conviction to be quashed and a new trial ordered.

38. [77]

    LONERGAN J: I joined in the orders made by this Court on 26 February 2025 for the reasons given by Davies J.

39. [78]

    YEHIA J: I have had the benefit of reading the draft judgment of Davies J and agree with his Honour’s reasons. They accord with my own reasons for joining in the orders made on 26 February 2025.